DOMA is Done: Damon Root on a Supreme Win for Gay Rights

A report from this week's oral arguments before the Supreme Court.

"This week is not going to be the sweeping victory for gay rights that many supporters and advocates hoped for," says Reason.com's Damon W. Root. "However, I think the Defense of Marriage Act is in trouble, which is definitely a win for gay rights." Root, who writes frequently about legal issues, attended both days of oral arguments at the Supreme Court this week for two cases pertaining to same-sex marriage.

Today's case, United States v. Windsor, looks at whether the Defense Marriage Act (DOMA) violates the Fifth Amendment's guarantee of equal protection. Signed by President Bill Clinton in 1996, the law denies federal marriage benefits to same-sex couples.

"What we saw today," says Root, "was Justice Kennedy really ready to strike down the law as an overreach of federal power, and many of the liberal justices ready to go right along with him."

Root sat down with Reason magazine's Katherine Mangu-Ward to discuss what today's proceedings—and yesterday's arguments in Hollingsworth v. Perry, which looked at the constitutionality of California's ban on same-sex marriage—mean for gay rights and personal freedoms.

About 5.30 minutes. Camera by Jim Epstein and Joshua Swain, and edited by Epstein.

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  • Fist of Etiquette||

    "The White House is saying, 'Well, we're not going to defend the law in court, but we are going to take your money.'"

    Obama isn't lazy or anti-gay, he just needs the money.

  • Hugh Akston||

    Those poor kiddies who can't take White House tours because of the republiquester. He thinks about them while looking wistfully out the window of Air Force One on his way to hos monthly vacation.

  • The Minority||

    on his way to hos monthly vacation

    That's not a nice thing to say about the First Lady.

  • Hugh Akston||

    Hey, nobody wants to be in the White House when Michelle's Aunt Flo is in town.

  • Linda518||

    like Shawn responded I'm in shock that a person able to profit $5473 in a few weeks on the internet. did you read this web page jump15.com

  • Rasilio||

    Jesus fuck stop with the gay marriage crap, I mean can we talk about anything else? Yes I agree gay marriage should be at least left to the states if not outright legalized but realistically this is one of the least important issues one can possibly imagine. Sure, it is terribly important to a very small handful of individuals, but in the aggregate of all of society, it is pretty much a complete and utter non issue and yet it has dominated discussion here and pretty much everywhere else for the last 2 weeks

  • ||

    Oral arguments make it the news of the week, I don't know why this bothers you.

  • Fist of Etiquette||

    While it doesn't bother me like the 47% orgy, reason treats this like it's the civil rights issue for our generation. While marriage recognition equality may be a feel good issue, and generally positive, it's not really a libertarian position.

  • Another David||

    How about we have a daily "the 47% didn't build that gay marriage" post and get it all out of the way at once?

  • Irish||

    You'd also need to fit Ann Coulter calling Libertarians pussies into this potential omnibus post.

  • JohnD||

    I guess the truth hurts. You people are pussies and your all delusional.

  • AlmightyJB||

    What's sad is I know a lot of folks in their early 20s (not gay) who treat it like the most important issue in the history of the planet. It's truely insane.

  • GILMORE||

    they are the Freedom Riders of the 21st century. Defending the Rights of others in the face of.... widespead complacency and ambivilence... well, its the best fight they can find that isnt like, too hard or scary. I bet many are like totally opposed to Fracking too. although have trouble splaining it.

    i personally am totally pro-gay rights. although all the fags in my neighborhood get on my nerves. i see no problem with this POV.

  • AlmightyJB||

    Oh. I'm all for gay rights but I hardly believe not having the majestic state recognize someones relationship status is the most horrible injustice to ever face mankind which is no shit how they act.

  • JohnD||

    The gays are more interested in waving it in your face than in actually being treated equally.

    Nothing is more disgusting than a gay pride parade. Except maybe tools like Tony.

  • Troglodyte Rex||

    We're here, we're queer, we're fucking up traffic patterns.

  • bmp1701||

    It's a great issue, because no matter what happens it doesn't involve cutting programs to anybody, and at most it involves expanding some benefits to a narrow subset of the population. Each side gets to feel moral goodness, and nobody's bennies are in danger.

  • MoreFreedom||

    A libertarian position would be that government doesn't discriminate against individuals because they are married or not, nor if they have children or not. That would be equality before the law.

  • Rasilio||

    News of the moment it may be due to the Supreme Court hearing the cases back to back, however in the last 48 hours reason has posted 13 different articles related in whole or in part to Gay Marriage and to their credit this is somewhat restrained compared to other media and social media outlets however is still overkill given how trivially minor the issue should be

  • ||

    "...the least important issues one can possibly imagine."

    Why do you think it is being talked about so much?

  • JohnD||

    Because it's a Democratic issue and the corrupt media (including Reason) goes along with it.

  • robc||

    Im hoping for a huge win for federalism.

  • Hugh Akston||

    Are they SEC or PAC-12?

  • AlmightyJB||

    WAC. Fans are called WACko birds.

  • The Minority||

    I like where this mishegas is going (which means it will probably go off in an entirely different direction...). If I'm right, we'll get a nice split-the-baby pair of decisions, with DOMA getting canned because it's none of the feds' business, while on the other hand, no new constitutional rights are pulled out of the magical penumbra.

  • mr simple||

    So are we all gay married yet?

  • AlmightyJB||

    Yah know what. I see so many hetrosexual couples that don't seem to be interested in getting hitched (milk for free I suppose) we may get to the point where only gay people are getting married:)

  • Brian from Texas||

    While I don't really think of myself as a gay rights activist I do, however, believe in separation of marriage and state. For that reason alone I'll certainly applaud should DOMA be stricken down.

  • GILMORE||

    forget gay marriage... im still fighting for recognition of Voodoo Marriage. While in Haiti i was spinkled with chicken blood while daning around a fire with a large snake, and told aftetwards i was now the bride of Bacalou. i want my deductions!

  • Heroic Mulatto||

  • GILMORE||

    sigh... its that type of over-commercialization of Voudoun that made me release my zombie slaves and get into Aztec religion. Anyone up for a game of Ullamaliztli??

    http://www.aztec-history.com/aztec-ball-game.html

  • The Immaculate Trouser||

    The only thing that should be "winning" here is the federalist system of limited government and liberty that was established by the Constitution and fought for by our forefathers (well, your forefathers... mine were busy finding ways to avoid work at a Caribbean rum distillery, heh).

    Gay marriage is really quite incidental to that goal (or should be).

  • Calidissident||

    I think knocking down DOMA (at least the part where the feds pick and choose which state licenses to recognize) is a win for federalism.

  • The Immaculate Trouser||

    I do too, but it's entirely incidental to gay rights.

  • Dens214||

    The legalization of same sex marriage is not a burning issue for me, however the route to it disturbs me.
    1. The traditional definition of marriage is a contract between a man and a woman. That it has been the socially accepted definition is self evident in that in order to describe the marriage of same sex couples we now have to use a modifier (gay marriage, same sex marriage, etc.)
    2. The gay community took a look at heterosexual marriage and thought that that is pretty close to a same sex relationship and decided close is good enough.
    3. The next step was to claim the equal protection clause.
    4. What if a right to life group took a look at the word person. A fetus is genetically identical to a person. It cannot survive outside the womb but it is pretty close to a person.
    5. Having decided that it is close enough, we now have an unborn person.
    6. Does an unborn person have the right to equal protection?

  • califernian||

    The traditional definition of The traditional definition of marriage is a contract between a man and a woman. That it has been the socially accepted definition is self evident in that in order to describe the marriage

    Please! Gimme a break. You are trying so hard to pretend that myriad cultures all over the world don't have long histories of marriage relationships that differ from the 1man 1 woman version you seem to love. But I know you are a grownup and actually are aware of this fact.

    1 man, MANY women is part of nearly every cultures' traditional past, including western and judeo-christian. You want to lean on tradition you should be a polygamist sir.

    HOnestly the rest of your post makes no sense.

  • Dens214||

    If you re-define a word from the socially accepted definition, you change how the law is administered. The "unborn" person concept is already being promulgated.
    Should the Supreme court rule on the equal protection aspect of this case concerning "same sex" marriage, I have no doubt that in the near future they will be ruling on the equal protection of "unborn" persons.

  • DenverJay||

    "1 man, MANY women is part of nearly every cultures' traditional past, including western and judeo-christian. You want to lean on tradition you should be a polygamist sir."

    But just because polygamy existed doesn't mean it was the norm. Sure the rich and powerful had many wives, but the most common family unit was one man and one woman. And, in fact, archaeological anthropology suggests that this has been the norm since before modern homo-sapiens evolved.
    Not that this has any thing to do with gay marriage. I don't see why someone doesn't sue under the establishment clause of the first amendment. Contract enforcement is a government responsibility, but marriage is a religious ceremony, and having priests, pastors, or any one else, authorized by the government to perform a religious ceremony is directly descended from State Religions going all the way back to the Babylonians.

  • califernian||

    Also, the word "marriage" is used in this context. So you're ok with it now right?

    http://en.wikipedia.org/wiki/Sporus

  • Tony||

    The problem with giving a fetus full personhood rights is that then we have a violation of the mother's rights. We have the state forcing her to give birth against her will. Which medical procedures do you think the state should force you to undergo against your will?

  • Dan||

    Except giving birth is not a medical procedure. It would happen naturally regardless of where you are and who is present.

  • Tony||

    So the state is forcing women either to undergo a medical procedure against her will or a traumatic physical process without the aid of medical care. Freedom!

  • Troglodyte Rex||

    You make a 100% valid point. Go ask your mother to perform a retroactive abortion.

  • JohnD||

    Damn right. If you support abortion, you're a murderer.

  • cavalier973||

    Hey, look at what those craaaazy Danes are doing

    http://www.telegraph.co.uk/new.....hurch.html

    Good thing that will never, ever happen here in a billion-zillion years. Because the only goal of same-sex marriage proponents is marriage equality.

  • cavalier973||

    This was a year ago, by the way.

  • Calidissident||

    That law actually only applied to the state church. In any case, arguing against gay marriage on the grounds that a lot of gay rights activists support anti-discrimination laws is disingenuous. Should we have upheld Jim Crow because many people in the Civil Rights Movement supported affirmative action and anti-discrimination laws? And there are such laws in place even in states that don't have gay marriage. The photographer case in New Mexico is an example.

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  • coradaved||

    If you think Raymond`s story is impossible..., three weeks-ago my auntie's boy friend got a cheque for $8253 just sitting there 40 hours a month in their apartment and the're roomate's mom`s neighbour did this for 9-months and got a cheque for more than $8253 in there spare time from a pc. applie the steps available on this page,
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  • cavalier973||

    You people realize that these spambots are only here because of gay marriage, right?

  • Dan||

    The argument that gay marriage bans violate the equal protection clause are idiotic.

    Gays are not being barred from anything. Nobody is telling them they aren't allowed to get married because they're gay.

    What they actually want isn't equal protection because they already have that. What they want is a govenment endorsement of their lifestyle. To legalize gay marriage you have to grant gays and only gays a right that nobody else has.

    The whole thing is so ridiculous anyway. Gays make up such a miniscule portion of the population despite the media trying to depict half the population as gay. And "marriage benefits" are so nonsensically insignificant that no rational person thinks this has anything to do with that.

  • MoreFreedom||

    The federal government is telling homosexuals that they must file their income taxes as individuals, and cannot receive the benefit that married couples can. Admittedly, if both couples work, there isn't any tax benefit. But if one stays at home, there is a large benefit.

    There are also laws regarding Social Security survivors benefits, which homosexuals cannot take advantage of.

    They don't have equal protection before the laws, because government discriminates against individuals depending on if they are married and how many kids they have.

  • Dan||

    That's all irrelevant.

    Gays are free to marry someone of the opposite sex just like any heterosexual is. And heterosexuals are prohibited from marrying someone of the same sex just like gays are. There is no discrimination and no inequity in the application of law.

    Violation of the equal protection clause requires that laws are being applied inconsistently. That is not the case here.

    You can argue about what marriage is and protest about wanting to change what it means, but that's an entirely different animal. There is no legal case for it.

  • Tony||

    Straights are able to marry the person of their choice for pretty much any reason. Gays are prohibited from marrying anyone they could possibly, by definition, have any interest in marrying. I don't think anyone is truly as obtuse as to think this is equality.

  • Dan||

    No they aren't. I can't go get married to a friend of mine so we can take advantage of all these great marriage benefits. I'm prohibited from doing so regardless of the fact I have no interest in a homosexual relationship.

    Again this is not an equal protection issue. It's an issue of wanting to redefine what marriage means.

  • JohnD||

    About what I expected from Tony.

  • PursuitOfScotch||

    Excuse the Godwin's Law proof but...

    Hitler's discrimination against jews wasn't really discrimination against jews. Jews had just as much right to be in Germany as Aryans did. They just had to be dead. So they were basically free to do whatever. No bigs.

  • cavalier973||

    Godwin's Law! Godwin's...oh...nevermind.

  • JohnD||

    Idiot

  • Dan||

    You can't truly be that much of a moron to think your analogy even makes any sense, let alone is comparable to the gay marriage situation can you?

  • MoreFreedom||

    If government wasn't already discriminating among individuals in the tax code (depending on if they are married and how many children they have), then homosexuals wouldn't be asking government to recognize their marriages.

    Instead of debating whether or not government should recognize gay marriage, we should be debating why and whether government should be discriminating against individuals. After all, isn't equal protection before the law in the Constitution?

  • Dan||

    You have no idea what equal protection means. It doesn't mean everyone gets the same benefits. It means laws are applied consistently to everyone regardless of who they are.

    What we should really be demanding is that the government get out of the marriage business altogether. Eliminate the largely mythical marriage benefits completely, stop bilking money from people for marriage licenses. Nobody gets them. This whole conversation ceases to exist and marriage is once again the domain of the church.

  • jacob||

    What you reap is what you sow. Not once, in the 15-20 years that I've been paying attention to politics, have I ever heard a conservative demanding that government get out of the marriage business. If they had been doing that, then this issue would be moot.

    When you have a situation when people X get a benefit that people Y don't get, for somewhat arbitrary reasons, then you can't sit and whine when people Y start to fight for equality.

  • Dan||

    Nobody is getting any benefits that somebody else is not allowed to get. That's pure nonsense.

    What you're claiming to be "equality" is actually an additional privelege granted only to a tiny subset of people. That is not equality, it's discrimination.

    And again stop with the nonsense about the benefits. If husband and wife both work there are no benefits, it's a penalty. And what household today have only one parent working? Not many because the ridiculous costs of living make it nearly impossible.

  • jeffcng||

    my classmate's mother makes $86/hr on the laptop. She has been fired for 6 months but last month her paycheck was $12984 just working on the laptop for a few hours. Read more here http://www.fly38.com

  • rickl7069||

    I simply do not understand why so many gays and, especially, so many libertarians want more government regulation and involvement in their lives. Marriage existed long before our govt. began licensing and, I believe it would do just fine (if not better) if the govt. got it's nose back out of it. Isn't it far more libertarian to push for an end to govt. regulation of marriage rather than for more regulation?
    It is not marriage that gays are fighting for, it is state licensing. If they want equality from the state, how about fighting for an end to all govt. intrusion into marriage.

  • Jayburd||

    Because a check is involved.

  • mariya||

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  • Jayburd||

    More rent seeking by gays.

  • Jayburd||

    The zombie-like march of gays towards a world where they too can be bribed or blackmailed by the government with their own taxes simply based on their behavior.

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